Voters do have a choice in future Supreme Court cases

The debate about how Justice Anthony Kennedy’s Supreme Court seat should be filled and how an expected “conservative” justice might rule on past issues misses the point.

Voters don’t get to decide who Donald Trump nominates or who the Senate approves. But voters do have a voice.

Many issues that reach the high court end up there because of a challenge to a law passed at the state or local level.

Voters do have a huge voice in who makes those laws.

While debating if a new justice would overturn Roe v. Wade, roll back affirmative-action laws, loosen restrictions on campaign financing or reverse rulings on marriage equality, advocates forget those cases all began with local legislation.

The Supreme Court doesn’t decided to reverse a previous ruling in a vacuum. A case usually begins with a challenge to a state law or policy and ends up at the Supreme Court because lower courts don’t settle a dispute.

For example, across the country, state legislators are ready to pass restrictions on abortion rights and same-sex marriage. If these new laws pass, they are likely to invite challenges that could reach the Supreme Court. With seven in 10 Americans opposed to overturning Roe v. Wade, those who want to limit abortion rights will look for restrictions that come just short of a ban.

Minnesotans have a unique opportunity in this election to decide if any of those cases originate here.

This fall, we’ll elect a new governor and all the members of the House of Representatives. State senators weren’t supposed to be on the ballot this November, but a unique set of circumstances created a special election that will decide whether Democrats or Republicans control the Legislature.

When Al Franken resigned his Senate seat, Gov. Mark Dayton appointed Lt. Gov. Tina Smith to the U.S. Senate, automatically elevating the president of the Senate, Michelle Fischbach, to lieutenant governor. Fischbach resigned her Senate seat at the end of this year’s session and created a need for a special election in District 13, which includes the cities of Sartell, St. Joseph, Cold Spring and Paynesville areas.

By choosing between Democrat Joe Perske and Republican Jeff Howe, the 80,000 or so voters in District 13 will decide who controls the Senate and possibly if one party controls the legislative and executive branches. Right now, the Republicans hold a 20-seat edge in the state house.

For at least the past eight years, a divided government has blocked legislation (along with a referendum on marriage equality) that would bump up against past Supreme Court rulings.

If one party controls all of state government, legislation that has been blocked in the past by liberals or conservatives could become state law and set up legal challenges that could reach the Supreme Court.

On the issue of abortion rights, advocates expect conservatives to introduce legislation that would add restrictions without an outright ban. Right now Minnesota places two restrictions on abortion rights: A woman must receive state-directed counseling that includes information designed to discourage her from having an abortion and then wait 24 hours, and the parents of a minor must be notified before an abortion is provided.

Voters do have a voice in future Supreme Court decisions.

Candidates for governor and the legislature should be pressed for what new laws they would support addressing social issues such as abortion rights, LGBTQ rights, voting rights, affirmative action and campaign finance.

Conservatives, if you’ve been waiting for a chance for the high court to support your social agenda, the effort begins with holding the state House and taking over the Senate and governor’s office.

Progressives defending abortion rights, voting rights and LGBT rights, you must support Democrats at every level.